Falling into the remarriage trap

Following the breakdown of a marriage, the parties naturally look to consider what their future may entail and in particular, how they might manage financially. Yet for some, dealing with the miasma of issues surrounding separation means that they never formalise the terms of any financial settlement with their spouse by way of a court order.

The court only makes financial orders if an application for an order has been made. Usually, these are made either as part of divorce proceeding (within the divorce petition itself) or by way of an application for financial remedy. Providing that an application to deal with the matrimonial finances is not dismissed as part of the divorce proceedings, there is no time limit within which an application for financial remedy must be made, even following a substantial delay.

Historical case law suggested that prolonged delays might reasonably allow a party to assume that there should be no further financial claims made against them, often relying on FPR 4.4 to strike out an application that had been subject to delay. In Vince v Wyatt [2013], the Court of Appeal used powers introduced by FPR 4.4 to strike out the wife’s application for financial orders, made 27 years after separation. The Supreme Court overturned the decision and allowed the wife’s application to proceed.

After decree absolute is pronounced, if either party subsequently remarries, that party cannot apply against their former spouse for a financial provision order or a property adjustment order. This is widely known as the “remarriage trap”. These barring orders include the ability for the court to order the transfer of property from one party to another and varying nuptial agreements for the benefit of either party. The right to apply for a pension sharing order is not lost on remarriage, as it is not included with the prohibition on applications for financial provision and property adjustment on remarriage.

Serving London and Bedford and the surrounding villages, our lawyers can help you with all your family law and separation matters. If you want to speak to one of our specialist solicitors about your matrimonial finances or an impending second marriage on available orders, contact us on 01234 889777 or 0207 177 9777 and talk to us today.